Tag Archives: intermediaries

ANALYSIS OF THE TIK-TOK ORDER

The Madras High Court delved into an important issue related to protecting children’s privacy in the context of web-based applications such as Tik-Tok, published by Bytedance (India) Technology Private Limited (“Company”). The petitioner contended that the app was “degrading culture”, encouraging pornography and exposing children to paedophiles.

As per Section 79 of the Information Technology Act, 2000 (“IT Act”) an intermediary would not be held liable for any third party information, data, or communication link made available or hosted by him provided that the intermediary’s functionality is limited to providing access to a communication system over which information made available by third parties is transmitted, temporarily stored or hosted or if the intermediary does not– (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission. The exemption would not be applicable if the intermediary is involved in the unlawful act or if the intermediary fails to take down any unlawful content upon receiving actual knowledge of such content.

Further, for the exemption to be applicable the Intermediary should abide by the due diligence standards prescribed in the Information Technology (Intermediaries Guidelines) Rules, 2011 (“IT Rules”). The Rules provide that an intermediary should, among other things:

  1. publish the rules for access or usage of the intermediary’s computer resource and inform its users that in case of non-compliance with rules, the Intermediary has the right to immediately terminate the access to the intermediaries resources.
  2. Include in the aforementioned rules, that the users should not host/upload any content that is grossly harmful, obscene, pornographic, paedophilic, libellous etc.
  3. publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users can notify their complaints

Tik-Tok can be deemed an “intermediary” under the IT Act. The petitioner had incorrectly compared the Tik-Tok to the infamous “Blue-Whale” application, which unlike Tik-Tok is not an intermediary. Through an interim order the Hon’ble High Court had directed the Government to prohibit any further downloads of the app and asked the Central Government whether it would enact any statute specifically protecting the privacy of children online, akin to US’s Children’s Online Privacy Protection Act (“COPPA”).

The COPPA was enacted with the intention of protecting the children and making the website operators more diligent towards the protection of personal data. The resultant obligations ensure that the websites obtain consent from the parents prior to collecting or processing any child’s information. COPPA requires site operators to allow parents to review any information collected from the children. This entails that the website would have to provide full access to all user records, profiles and log-in information upon being requested by the parent.

Mr. Arvind P. Datar, learned Senior Counsel, the amicus curiae submitted that the Indian laws were comprehensive enough to deal with the issues mentioned by the petitioner and that no special legislation needed to be enacted. It may also be noted that the draft Personal Data Protection Act (“Bill”) also deals with certain aspects of children’s privacy such as barring website operators from profiling of children or making any targeted advertising directed children.

The Company contended that it followed all the requirements under the IT Act and the IT Rules and in fact went above and beyond the requirements by 1) engaging a content moderation team to screen harmful content, 2) allowing users to block mischievous users, 3) providing a “report” feature which lead to average takedown time of just 15 minutes (even though the law expected intermediaries to initiate suitable actions within 36 hours of being informed of any unlawful content) 4) providing parental control/supervision related features  5) deploying an AI-powered takedown mechanism that detects illegal content, including content that is violative of Section 354C of the Indian Penal Code, 1860 and Section 66E of the IT Act etc.

The contentions of the Company with regards to diligence practices in accordance with industrial standards were taken on record by the Madras High Court as an undertaking and in furtherance of same, the interim ban imposed by its previous order dated April 3rd,  2019 was lifted.

Author: Spandan Saxena and Asis Panda

Reference:  S. Muthukumar v. M/S Bytedance (India) Technology Private Limited- http://164.100.79.154/madurai-do/index.php/casestatus/viewpdf/wp(md)_7855_2019_xxx_0_0_25042019_107_135.pdf

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